UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE TO/A
TENDER OFFER STATEMENT UNDER SECTION 14(d)(1) OR 13(e)(1)
OF THE SECURITIES EXCHANGE ACT OF 1934
(Amendment No. 1)
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KENDLE INTERNATIONAL INC.
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(Name of Subject Companies (Issuer) and Filing Persons (Issuer))
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3.375% Convertible Senior Notes due 2012
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(Title of Class of Securities)
(CUSIP
Number of Class of Securities)
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Copies of all communications to:
Jarrod B. Pontius, Esq.
Vice President, Chief Legal Officer and Secretary
441 Vine Street, Suite
500
Cincinnati, Ohio 45202
(513) 763-4293
Facsimile: (513) 381-5870
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(Name, address and telephone number of person authorized to receive notices and communications on behalf of filing persons)
With a Copy to:
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F. Mark Reuter, Esq.
Keating Muething & Klekamp PLL
One East Fourth Street, Suite
1400
Cincinnati, Ohio 45202
(513) 579-6469
Facsimile: (513) 579-6457
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CALCULATION OF FILING FEE
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Transaction valuation*
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Amount of filing fee
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$142,850,000
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$16,584.89
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*
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Calculated solely for purposes of determining the filing fee. The amount shown assumes that $142,500,000 aggregate principal amount of the 3.375% Convertible Senior
Notes due 2012 are purchased at the offer price of $1,002.50 per $1,000 principal amount plus accrued and unpaid interest up to but excluding July 11, 2011. The amount of the filing fee, calculated in accordance with the Securities Exchange Act of
1934, as amended, and Fee Rate Advisory #5 for Fiscal Year 2011, equals $116.10 per million of the transaction valuation.
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x
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Check box if any part of the fee is offset as provided by Rule 0-11(a)(2) and identify the filing with which the offsetting fee was previously paid. Identify the
previous filing by registration statement number, or the Form or Schedule and the date of its filing.
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Amount Previously Paid: $16,544.25
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Filing party: Kendle International Inc.
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Form or Registration No.: 055-52911
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Date filed: June 6, 2011
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¨
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Check the box if the filing relates solely to preliminary communications made before the commencement of a tender offer.
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Check the appropriate boxes below to designate any transactions to which the statement relates:
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third party tender offer subject to Rule 14d-1
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x
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issuer tender offer subject to Rule 13e-4
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¨
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going private transaction subject to Rule 13e-3
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¨
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amendment to Schedule 13D under Rule 13d-2
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Check the following box if the filing is a final amendment reporting the results of the tender
offer:
¨
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INTRODUCTORY STATEMENT
This Amendment No. 1 (Amendment) to the Tender Offer Statement amends and supplements the Tender Offer Statement on
Schedule TO, filed on June 6, 2011 (the Schedule TO) with the Securities and Exchange Commission (the SEC) by Kendle International Inc., an Ohio corporation (the Company or Offeror), which relates
to the offer (the Offer) by the Offeror to purchase for cash any and all of the Companys 3.375% Convertible Senior Notes due 2012 (the Notes or the Securities) upon the terms and subject to the conditions
set forth in the attached Offer to Purchase and Consent Solicitation Statement dated as of June 6, 2011 (as it may be amended or supplemented from time to time, the Offer to Purchase) and the related Letter of Transmittal and
Consent. Copies of the Offer to Purchase and the related Letter of Transmittal and Consent were filed with the Schedule TO as Exhibits (a)(1)(i) and (a)(1)(ii), respectively. The Offer will expire at 8:00 am, New York City time, on July 6,
2011, unless an Offer is extended or earlier terminated. This Schedule TO is intended to satisfy the disclosure requirements of Rule 13e-4(c)(2) under the Securities Exchange Act of 1934.
The information set forth in the Offer to Purchase and the Letter of Transmittal and Consent are hereby incorporated by reference in
response to Items 1 through 12 of this Amendment. This Amendment should be read together with the Schedule TO. This Amendment amends and supplements the Schedule TO to, among other things, increase the offer price per $1,000 principal amount of
Notes, upon the terms and subject to the conditions set forth in the Offer from $1,000.00 to $1,002.50, plus all accrued and unpaid interest, as set forth below.
ITEMS 1 - 11.
The Offer to Purchase and the Letter of Transmittal and
Consent are hereby amended and supplemented by:
A. Increasing the price per $1,000 principal amount of Notes to be paid
pursuant to the Offer, upon the terms and subject to the conditions set forth in the Offer from $1,000.00 to $1,002.50 per $1,000 principal amount of Notes purchased plus all accrued and unpaid interest from the last interest payment date for such
Notes preceding the Payment Date, but not including the Payment Date for Notes purchased in the Offer. All references in the Offer to Purchase and the Letter of Transmittal and Consent to the offer price of $1,000.00 per $1,000 principal amount of
Notes are hereby amended and restated to refer to $1,002.50 per $1,000 principal amount of Notes.
B. Striking the following
from the section under the heading Incorporation of Documents by Reference in the Offer to Purchase:
All
documents and reports filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this Statement and at or prior to the earlier of the Offer Expiration Date or termination of the
Offer and the Consent Solicitation shall be deemed incorporated herein by reference and shall be deemed to be a part hereof from the date of filing of such documents or reports. Notwithstanding the foregoing, no documents or information that are
deemed to have been furnished and not filed in accordance with the Commissions rules are or will be incorporated herein by reference, unless otherwise specifically indicated in such document. Any statement contained in a document or report
incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Statement to the extent that a statement contained herein or in any subsequently filed document or report that also is or
is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Statement.
C. Striking within the meaning of the Private Securities Litigation Reform Act of 1995 from the section under the heading
Forward-Looking Statements in the Offer to Purchase.
D. Amending the first sentence in the fourth paragraph under
the heading entitled Important in the Offer to Purchase to read Tenders of Notes may be withdrawn at any time at or prior to the Offer Expiration Date, but not thereafter, unless not accepted for payment after the expiration of 40
business days from the commencement of the Offer, in which case such tendered Notes may be withdrawn as well as the corresponding disclosure found under the heading entitled Withdrawals of Tenders and Revocation of Consents, in the
Offer to Purchase; and amending the second sentence in the sixth paragraph under the heading entitled Terms of the Offer and the Consent
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Solicitation to read Tendered Notes may not be withdrawn and the related Consents may not be revoked subsequent to the Offer Expiration Date, unless not accepted for payment after the
expiration of 40 business days from the commencement of the Offer, in which case such tendered Notes may be withdrawn as well as the corresponding disclosure found under the headings entitled Withdrawal of Tenders and Revocation of
Consents; Absence of Appraisal Rights in the Offer to Purchase and on pages 3, 4 and 10 of the Letter of Transmittal and Consent.
E. Striking the following from the section under the heading entitled Certain United States Federal Income Tax Consequences in the Offer to Purchase:
Internal Revenue Service Circular 230. To ensure compliance with internal revenue service circular 230, holders are hereby notified
that: (a) any discussion of federal tax issues contained or referred to in this offer to purchase and consent solicitation statement is not intended or written to be used, and cannot be used, by holders for the purpose of avoiding penalties
that may be imposed on them under the internal revenue code; (b) such discussion is written in connection with the promotion or marketing by the offeror and the dealer manager of the transactions or matters addressed herein; and
(c) holders should seek advice based on their particular circumstances from an independent tax advisor.
F.
Striking the following from the section under the heading entitled Important Tax Information in the Letter of Transmittal and Consent:
Internal Revenue Service Circular 230 Disclosure. To ensure compliance with Internal Revenue Service Circular 230, Holders are hereby notified that any discussion of tax matters set forth in this
Consent and Letter of Transmittal was written in connection with the promotion or marketing of the transactions or matters addressed herein and was not intended or written to be used, and cannot be used by any person, for the purpose of avoiding
tax-related penalties under the Internal Revenue Code. Each Holder is encouraged to seek advice based on its particular circumstances from an independent tax advisor.
ITEM 7. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
Item 7 of
the Schedule TO is hereby amended and supplemented to strike the last paragraph under Item 7 and replace it with the following:
(d)
Borrowed Funds
. The information set forth in (i) the Offer to Purchase under Sources and Amount of Funds and (ii) the definitive Proxy Statement on Schedule 14A with
respect to the Merger filed with the SEC on June 3, 2011, as the same may be amended and supplemented, under The MergerFinancing of the Merger is incorporated herein by reference.
ITEM 10. FINANCIAL STATEMENTS.
Item 10 of the Schedule TO is hereby amended and supplemented to replace the language following (a) Financial Information with Not Applicable.
ITEM 12. EXHIBITS.
Item 12 of the Schedule TO is hereby amended and supplemented to add the following exhibit:
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Exhibit Number
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Description
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(a)(5)(i)
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Press Release issued by the Company on June 17, 2011.
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4
SIGNATURE
After due inquiry and to the best of my knowledge and belief, I certify that the information set forth in this Schedule TO/A is true, complete and correct.
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KENDLE INTERNATIONAL INC.
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By:
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/s/ Jarrod B. Pontius
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Name:
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Jarrod B. Pontius
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Title:
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Vice President, Chief Legal Officer and
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Secretary
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Date: June 17, 2011
EXHIBIT INDEX
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Exhibit Number
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Description
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(a)(1)(i)
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Offer to Purchase and Consent Solicitation Statement dated June 6, 2011.*
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(a)(1)(ii)
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Letter of Transmittal and Consent.*
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(a)(1)(iii)
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Press Release issued by the Company on June 6, 2011.*
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(a)(5)(i)
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Press Release issued by the Company on June 17, 2011.
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(b)
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None.
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(d)(1)
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Definitive Proxy Statement on Schedule 14A with respect to the Merger filed with the SEC on June 3, 2011, as the same may be amended and supplemented (incorporated herein by
reference).*
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(g)
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None.
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(h)
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None.
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